ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00013363
Complaint
Act | Complaint/Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977 | CA-00017558-001 | 21/02/2018 |
Date of Adjudication Hearing: 05/07/2018
Workplace Relations Commission Adjudication Officer: Rosaleen Glackin
Procedure:
In accordance with Section 8 of the Unfair Dismissals Acts, 1977 - 2015,and following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.
BACKGROUND.
The Complainant was employed as a Caretaker by the Respondent from 2nd September 2002 until his employment was terminated with notice on 13th November 2017. He was paid£2525.00 gross per month and he worked 35 hours a week. He was provided with a written statement of his Terms and Conditions of Employment, including the Grievance and Disciplinary Procedures of the Company. The Complainant referred a complaint to the Workplace Relations Commission (WRC) on 21st February 2018 alleging he had been unfairly dismissed. The dismissal was not in dispute.
SUMMARY OF RESPONDENT’S POSITION.
In June 2017 the Principal of the College was made aware by authorised electrical contractors of a serious incident in the Sports Hall between Friday 23rd June and Saturday 24th June 2017 whereby electrical works put in place by the authorised contractor were tampered with and left in a dangerous state. There was an investigation into this serious incident and the Complainant was placed on suspension with full pay. He was informed this suspension was not a disciplinary sanction but was intended to allow the Respondent to examine the issues. Copy of the notice was presented at the Hearing.
The Respondent received a report from the named Electrical Contractors - copy provided, which sets out the chain of events from the completion of the electrical works on the eventing of 23rd June to discovery by staff on the morning of 24th June 2017 that the wiring had been interfered with and exposing cables previously installed. This the contractors stated could have led to a possible trajic outcome if the situation had not been rectified by the Contractor. During the course of the investigation it was stated that the Complainant had represented himself to the Contractors as the Health and Safety Officer and that he intended to report the Contractors for breaches of Health and Safety Regulations..
A Health and Safety independent person, named, was appointed to conduct the investigation. The Contractors and the Complainant were interviewed by the Investigator and he produced an eight page detailed report dated 18th October 2017. He found that the Complainant was the most likely person to have interfered with the works in question.
The Board of Management met on 8th November 2017 and the Chair of the Board wrote to the Complainant on 25th October 2017 informing him of the allegations against him, the nature of the evidence and requesting him to attend a Disciplinary Hearing on 8th November 2017. He was advised this was a formal disciplinary hearing that could result in a disciplinary sanction, including dismissal and he was informed of his right to be accompanied by his Trade Union Representative. He was also advised that he had a right to call any witness. – copy of letter provided to the Hearing. The Complainant was accompanied by his SIPTU Representative. The Complainant also forwarded a written submission dated 6th November 2017 to the Board prior to the Disciplinary Hearing. Copy provided to the Hearing. The Board of management conducting the Disciplinary Hearing heard evidence from the Investigator, the Electrical Contractor, named, and from the Complainant. The Complainant was provided with the Investigators Report and also the complaint from the Electrical Contractor. During the investigation meeting the SIPTU Representative put forward the hypothetical situation of the Complainant admitting his involvement in the incident and demonstrating it was done with no malice or intent on the part of the Complainant as he was only thinking of the disruption to the children’s party scheduled for the afternoon, what would be the likely outcome. The Investigator in his report record the Complainant took time out with his SIPTU Representative and on his return the Complainant continued to deny any involvement.
The outcome was to issue the Complainant with a letter of dismissal dated 13th November 2017 with eight weeks notice to expire on 3rd January 2018.
The Respondent confirmed at the Hearing that the Complainant had not been afforded a right of appeal in relation to the dismissal. Minutes of the Board Meeting of 8th November 2017 were presented to the Hearing.
SUMMARY OF COMPLAINANT’S POSITION.
An incident report was submitted by a named electrical contractor to the Principal of the College in respect of an alleged incident on 23rd/24th June 2017. This report outlined that when the Electrical Contractors returned to work on Saturday 24th June 2017 found that the wiring had been interfered with and electrical cables had been left exposed. They also set out further concerns in relation to the incident. The Report goes on to state that the Foreman made enquiries and discovered that the named Caretaker, the Complainant, was responsible for interfering with the works and the Foreman confronted the Complainant who admitted to interfering with the wiring and explained that he did so as he needed to get things working so that the Bouncy Castles for the Children’s Party on the weekend of 24th June 2017.
An Investigation was initiated and during the course of this investigation the Complainant was suspended with pay by letter dated 28th June 2017. The Complainant engaged in the investigation and the Investigator issued his report on 23rd October 2017 and he sets out his findings in relation to the incident. Following this Report a Disciplinary Hearing took place on 8th November 2017 and the outcome was received by the Complainant on 13th November 2017. The Complainant was dismissed effective from 3rd January 2018.
The Union and the Complainant argued in summary as follows – there were no terms of reference for the investigation – there were no witness statements produced and the Complainant’s request to face his accuser was denied – there was no signature just a typed name on the electrical contractors report provided to the Complainant – the Electrical Contractor had not reported the incident to the Health and Safety Authority – there was no photographic or CCTV footage available to substantiate the allegations – the College insurance was suspended and the Electrical Contractor Insurance took its place during the works – the Complainant was not provided with any interview statements during the investigation – the Investigator did not interview any staff employees or members of the Public and the Manager of the Sports Hall refused to be interviewed – there was no firm evidence presented during the investigation to substantiate the allegation that the Complainant breached any Health and Safety regulations nor interfered with the works of the Electrical Contractor.
The Complainant stated he had not worked since his dismissal and was in receipt of Job Seekers Benefit. Evidence was provided from the Department post the Hearing that the Complainant was in receipt of Job Seekers from 4th January 2018 to 11th July 2018. Evidence was also provided post the Hearing which shows the Complainant sought to mitigate his loss. The Complainant selected all remedies if successful.
FINDINGS AND CONCLUSIONS.
On the basis of the evidence, written submissions from both Parties with supporting documentation, questioning by the Adjudication Officer at the Hearing I find as follows –
The Electrical Contractors, named, were completing electrical works in the GYM Building which was to be vacated between 3rd and 30th June 2017 with just one exception, named. They reported, in an undated report, to the Principal of the College that they had completed their work on Friday evening 23rd June but when they returned on 24th June 2017 they found the wiring had been interfered with in the Sports Hall and electrical cables had been left exposed. They stated the Foreman made enquiries and discovered the named Caretaker, the Complainant, had been responsible for the incident. The Foreman confronted the Complainant and he admitted the incident saying he wanted to get things working for the Bouncy Castles for the Childrens Party at the weekend. The Report also states that the Complainant offered to put back the cables but he was informed not to interfere with the contractors work again. They requested that the Complainant not be allowed to work in this area again.
I note that while the Complainant is employed by the Respondent Company, as the Caretaker, he also worked for a private Company who had the lease at weekends to organise children’s Parties in the Sports Hall and they also held the lease for the Creche.
I note that the Complainant was provided with the Contractors Written Report to the Principal prior to the Investigation and was aware of the allegations against him. There was an Interview conducted with the Complainant by the appointed Investigator on 4th July 2017. I note that the report of this meeting show the Complainant had been advised by SIPTU not to answer any questions with regard to the incident without being given the name of his accuser. I note a second meeting took place on 13th July 2017 and the Complainant was accompanied by SIPTU. At this meeting the Investigator’s Report shows the Complainant denied any involvement in the incident and he sought to raise historical issues at this meeting.
A question arises as to why the Complainant’s SIPTU Representative put forward a hypothetical situation of the Complainant admitting his involvement in the incident and demonstrating that it was done with no malice or intent on the part of the Complainant but was only thinking of the disruption to the Children’s Party. I note the Investigators Report there was an adjournment and when the Complainant returned he continued to contend he had no involvement in the incident. This raises serious concerns as the Investigators Report was not disputed at the Hearing. This also has potential implications for my Decision under Section 7(2) of the Act if I find in favour of the Complainant.
I note the Complainant was suspended on full pay pending the outcome of the investigation, the appointed Investigator, being an independent Health and Safety person, interviewed both the Contractors and the Complainant and produced an eight page comprehensive report dated 23rd October 2017 which concluded the “most likely person to have interfered with the works in question” was the Complainant.
I note that the Investigator sought to interview the named person who holds the lease to the Sports Hall and the Creche on two occasions but he refused to go on record for personal reasons.
I find the Complainant was afforded due process in relation to the investigation and the Disciplinary process.
I also note that the Complainant did make a submission of 9 pages dated 6th November 2017 which was prior to the Disciplinary Hearing of 8th November 20127 in which he raises queries concerning the report of the incident by the Electrical Contractors – a hyphen is left out of the contractors name – it doesn’t name the Principal of the College – its not on headed paper of the Contractor – its not dated or signed and that a formal report does not conclude with “Regards”. I note that in this submission the Complainant deals with a substantial number of historical issues which he sets out and I further note that the Investigator clearly stated he could not address these issues but only the incident relating to 23rd/24th June 2017. These historical issues are covered in 6 of the nine pages of the Complainant’s submission.
I note and confirmed by both Parties that the Complainant was dismissed by letter dated 13th November 2017 with notice to expire on 3rd January 2017. I note that the Complainant was not afforded a right to appeal the decision to dismiss which is in breach of S.I. 146/2000.
Section 7(2)(d) of the Unfair Dismissals Act provides as follows “ …in determining the amount of compensation payable under that subsection regard shall be had to – (b) the extent (if any) to which the said financial loss was attributable to an action, omission or conduct by or on behalf of the employee (d) the extent (if any) of the compliance or failure by the employer, in relation to theemployee, with the procedure referred to in subsection (1) of section 14 of this Act or with the provisions of any code of practice relating to procedures regarding dismissal approved of by the Minister” S.I. 146/2000 was approved and signed into law by the Minister, Ms Harney on 26th May 2000. This Statutory Instrument provides as follows at Section 4 – General Principles – as follows “an internal appeal mechanism is available”. I find the Respondent has breached this statutory code.
Decision:
Section 8 of the Unfair Dismissals Acts, 1977 – 2015 requires that I make a decision in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act.
On the basis of the evidence presented at the Hearing, written submissions and questioning by the Adjudication Officer, my findings above and in accordance with Section 8(1)(c) of the Act I find the Complainant was unfairly dismissed as the Respondent did not comply fully with S.I. 146/2000 when the Complainant was not afforded a right of appeal of his dismissal. On the basis of all the evidence in relation to the Investigation, the Investigators report which was not disputed at the Hearing at outlined above in my findings I direct the Respondent to pay the Complainant compensation of £3000.00 euro to the Complainant within 42 days of the date of this Decision.
Dated: 12/09/2018
Workplace Relations Commission Adjudication Officer: Rosaleen Glackin
Key Words:
Unfair Dismissal – Section 7 (2) of the Act – Appeal of dismissal not afforded to the Complainant – breach of S.I. 146/2000 – award of £3000.00 taking on board the findings of the Investigator. |